European Union (Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, it is hard to follow the noble Lord, Lord Saatchi, and it is hard to follow Warwickshire cricket. I was going to say that the speech which has made the most impact on me so far in the debate was that of the noble Lord, Lord Bridges, yesterday. He spoke of the need for us to decide what kind of country we want, because only when we know what we want to be will we know what relationship with Europe is right for us. Not for the first time, he called on the Government to be,

“honest with themselves and the public about the choices we face. Then, the Prime Minister and her Cabinet must make those choices … to govern is to choose. As we face the biggest challenge this country has faced since the Second World War, keeping every option open is no longer an option”.—[Official Report, 30/1/18; col. 1423.]

I could not agree more. I could not put it better. I am very uneasy about the silence of the sphinx. I am very uneasy when I see free-market wolves in cuddly sheep’s clothing promising undiminished farm support. I am very uneasy about fierce critics of the working time regulations promising that there will be no change to labour rights, employment rights, social rights and equality rights, and that we do not need to worry about giving Ministers the power to make changes to such rights by statutory instrument.

More generally, the Government need to come clean on whether taking back control means a bonfire of controls, and whether we are going to change our socioeconomic model, as in autumn 2015 the Chancellor said we might have to do. We need to know for two reasons. First, the Bill asks us to give them the matches to light the bonfire if they want to. Secondly, our partners across the Channel need to know. They will decide what access we can have to their markets depending on how far we will stick to the model of how their economies—most western European economies—work.

It will not do any longer just to say that we want something deep, special, unique and bespoke: we have to define what it is. It is not enough to say—as we said, far too soon—what we do not want. Mrs Merkel is quite right: we have now to say what we do want. When the 27 say that the British red lines mean that the British can have no more than a “Canadian” deal, we must stop putting our fingers in our ears and chanting “la la la—I can’t hear you”. It is their call: they will say what deal we will get. There are red lines, but it is their call. Getting a Cabinet to agree and stick to a line is always difficult, but that is the job. A sphinx- like silence will not do any more.

Of course we must pass this Bill, for all the reasons mentioned by so many noble Lords. If in the end we leave the EU, EU law has to be instantly repatriated to ensure legal continuity. We must, therefore, pass the Bill, and I am confident that we will improve it. I would like to see improvements in four areas.

The first is the area that the noble Lord, Lord Lisvane, among others, drew attention to: I do not see any need for such a massive transfer of power from legislature to Executive, and on that I very much agree with the warning from the noble and learned Lord, Lord Judge. For me, the lightbulb moment was spotting Clause 9(2), where Ministers take the power to change—by delegated regulation—this Act. So we spend the next three months working day and night to improve the Bill and when it is on the statute book the Minister, with a flick of his pen, can cross out our work. That cannot be right. In the words of the Constitution Committee, it gives Ministers,

“far greater latitude than is constitutionally acceptable”.

Secondly, as a Scotsman I of course listened very carefully to the noble and learned Lords, Lord Hope, Lord Wallace of Tankerness and Lord Mackay, and it seems to me that they are right: there is no need to attack and overturn the central principle of the devolution settlement—and there will be a huge price to be paid if we do. I do not understand the sphinx-like disdain for consultation with the devolved Administrations. It is exactly a year since the Prime Minister last met her devolved Administration colleagues in the JMC, the top-level committee set up for consultation with the devolved Administrations—a whole year. That cannot be right. I very much hope that the Minister will bring forward an agreed amendment to Clause 11 very soon, but we may need to nudge the process a bit and perhaps also make sure that the Belfast principles, as set out in the Northern Ireland Act 1998, cannot be undercut by powers taken in this Bill.

Thirdly, like the noble Lord, Lord Hannay, I have difficulty understanding the link between this Bill and the stand-still transition period that, it seems, we want. The 27 reminded us in the mandate that they agreed on Monday that in the transition period the ECJ’s jurisdiction will rule. The Prime Minister acknowledged that in her Florence speech. Why, therefore, does the Bill strike out the ECJ’s jurisdiction? We will only have to put it back again if we get a transition period.

Lastly, I am uneasy that Ministers may try to duck out of the meaningful vote that we have been promised when the outcome of the negotiations is clear. Suppose that there is no deal. Suppose also that by then we have a different Prime Minister—the sphinx sits on shifting sands. Suppose that we have a Prime Minister who believes that Brussels should whistle for the money. Suppose that the negotiations break down. Will we get the meaningful vote to ensure that Parliament cannot be bypassed? This Bill has to guarantee that in all circumstances the moment of truth will definitely come—and come at a time when we still have the options of extending withdrawal negotiations, taking back the Article 50 notification letter or consulting the country about doing so.